Date: 12 November 2013
ESMA/2013/1642
PUBLIC STATEMENT
Information on shareholder cooperation and acting in concert
under the Takeover Bids Directive
1.
Introduction
1.1
In its report1 (Report) to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions on the application of Directive
2004/25/EC on Takeover Bids (TBD), the European Commission (Commission) suggested that
clarification of the concept of “acting in concert” at EU level would help to lessen uncertainty
for international investors who wish to cooperate with each other on corporate governance
issues but who feel inhibited from doing so for fear that they might risk having to make a
mandatory bid.
1.2
The Commission emphasised in the Report, however, that the suggested clarification should
not limit the ability of national competent authorities 2 to oblige control-seeking concert parties
to accept the legal consequences of their concerted action.
1.3
The Commission commented further on this matter in its Action Plan on European company
law and corporate governance3, where it stated that “Effective, sustainable shareholder
engagement is one of the cornerstones of listed companies’ corporate governance model”. It
continued by saying that if the suggested clarification were not provided, “shareholders may
avoid cooperation, which in turn could undermine the potential for long-term engaged share
ownership under which shareholders effectively hold the board accountable for its actions”.
1.4
This public statement has been prepared for investors in response to the Commission’s
suggestion on the basis of information collected by the members of the Takeover Bids Network
(TBN) about national practices and application of the TBD. The public statement represents
the collective view of the members of the TBN, who stand behind it. The TBN operates under
1
2
COM(2012)347.
National competent authorities appointed under Article 4(1) of the TBD and having responsibility for the regulation of
takeover bids.
3
COM(2012)740/2.
1
the auspices of ESMA and its members are the national competent authorities appointed under
the TBD.
1.5
Following consideration of the information collected, a “White List” of activities, in which
shareholders may wish to engage in order to exercise good corporate governance over the
companies in which they have invested, has been identified. If shareholders cooperate to
engage in any activity on the White List, insofar as that activity is available to them under
national company law, that cooperation, in and of itself, will not lead to those shareholders
being regarded as persons acting in concert and thus being at risk of having to make a
mandatory bid.
1.6
However, individual cases of cooperation between shareholders and the consequences of such
cooperation must be determined on their own particular facts. National competent authorities
will have regard to the White List when determining whether shareholders are persons acting
in concert under national takeover rules but will also take into account all other relevant
factors in making their decisions.
1.7
The public statement emphasises the importance of early consultation with national competent
authorities by parties concerned, in accordance with national procedures, where there is any
uncertainty. See Appendix A for contact details.
1.8
This public statement does not address disclosure obligations.
1.9
ESMA will keep the public statement under review in order, as far as possible, to ensure that it
continues to reflect accurately the practices and application of the TBD in the Member States.
2.
Relevant provisions of the TBD
2.1
Article 2.1(d) of the TBD defines “persons acting in concert” as follows:
“‘persons acting in concert’ shall mean natural or legal persons who cooperate with the
offeror or the offeree company on the basis of an agreement, either express or tacit, either
oral or written, aimed either at acquiring control of the offeree company or of frustrating the
successful outcome of a bid”.
Article 5.1, the “mandatory bid rule”, provides as follows:
“Where a natural or legal person, as a result of his/her own acquisition or the acquisition by
persons acting in concert with him/her, holds securities of a company as referred to in Article
2
1(1) which, added to any existing holdings of those securities of his/hers and the holdings of
those securities of persons acting in concert with him/her, directly or indirectly give him/her
a specified percentage of voting rights in that company, giving him/her control of that
company, Member States shall ensure that such a person is required to make a bid as a
means of protecting the minority shareholders of that company. Such a bid shall be
addressed at the earliest opportunity to all the holders of those securities for all their holdings
at the equitable price as defined in paragraph 4.”
2.2
The information collected about the application of these two provisions has shown that in some
Member States, when shareholders come together to act in concert in relation to a particular
company in circumstances where, independently, they have already acquired securities in that
company which, in total, carry the specified percentage of voting rights that confers “control”
under national takeover rules4, they will be required to make a bid to all other shareholders (a
“mandatory bid”). In other Member States, no mandatory bid obligation will arise initially
when shareholders come together to act in concert in such circumstances but such an
obligation may be triggered by acquisitions of securities carrying voting rights in the company
by any of the shareholders regarded as persons acting in concert. Some Member States, owing
to a lack of relevant experience have not yet settled the consequences for shareholders who
come together to act in concert in the circumstances described above. Further information is
provided in Appendix B2.
2.3
Where the securities held by a group of shareholders carry voting rights, which in total are
below the national threshold for “control”, there are no immediate bid consequences for those
shareholders, even if they are regarded as persons acting in concert. A mandatory bid may be
required subsequently if one or more of those shareholders acquires more securities carrying
voting rights so that in total the securities held by the group carry the specified percentage of
voting rights that confers “control” under national takeover rules.
3.
Shareholder cooperation and acting in concert
3.1
ESMA recognises that shareholders may wish to cooperate in a variety of ways and in relation
to a variety of issues for the purpose of exercising good corporate governance but without
seeking to acquire or exercise control 5 over the companies in which they have invested.
4
5
See Appendix B1 for details of “control thresholds” in each Member State.
References in this document to shareholders cooperating to “acquire or exercise control” over a company will, mutatis
mutandis, include, in certain Member States, shareholders cooperating to acquire and/or exercise voting rights in order to
implement a common policy or strategy in relation to a company or in order to exercise a dominant influence over it. See
Appendix C.
3
Cooperation might consist of discussing together issues that could be raised with the board 6,
making representations to the board on those issues, or tabling or voting together on a
particular resolution. The issues on which shareholders might cooperate could include:
commercial matters (such as particular acquisitions or disposals, dividend policy, or financial
structuring); matters relating to the management of the company (such as board composition
or directors’ remuneration); or matters relating to corporate social responsibility (such as
environmental policy or compliance with recognised standards or codes of conduct).
3.2
National competent authorities agree that national takeover rules should not be applied in such
a way as to inhibit such cooperation. Therefore, a “White List” of certain activities in which
shareholders might wish to engage for the purposes of exercising good corporate governance
(but without seeking to acquire or exercise control over the company) has been identified,
based on existing laws, regulations and practices in the Member States. When shareholders
cooperate to engage in any activity included on the White List, insofar as that activity is
available to them under national company law, that cooperation, in and of itself, will not lead
to a conclusion that the shareholders are acting in concert, and thus to a risk of those
shareholders having to make a mandatory bid.
3.3
However,
national
competent
authorities,
when
determining
whether
cooperating
shareholders are acting in concert, decide each case on the basis of its own particular facts. If
there are facts, in addition to the fact of the shareholders’ engagement in any activity on the
White List on a particular occasion, which indicate that the shareholders should be regarded as
persons acting in concert, then the national competent authority will take those facts into
account in making its determination. There might, for example, be facts about the relationship
between the shareholders, their objectives, their actions or the results of their actions, which
suggest that their cooperation in relation to an activity on the White List is not merely an
expression of a common approach on the particular matter concerned but one element of a
broader agreement or understanding to acquire or exercise control over the company.
3.4
On such a basis, where shareholders engaging in an activity on the White List are in fact
cooperating with the aim of acquiring or exercising control over the company, or, in fact, have
acquired or are exercising control, those shareholders will be regarded as persons acting in
concert and may have to make a mandatory bid.
6
In this document, “board” refers to the supervisory and/or managerial body in companies having a dual board structure and to
the single administrative body in companies having a unitary board structure.
4
4.
The “White List” of activities
Whenever there is any uncertainty about proposed shareholder cooperation, including, in
particular, when the proposed cooperation relates to voting on a resolution which is not
included in the list in paragraph 4.1(d), parties concerned are encouraged to consult the
relevant national competent authority for guidance as early as possible. Guidance will be
provided within the framework of national laws, regulations and practices. Relevant contact
details are provided in Appendix A.
4.1
When shareholders cooperate to engage in any of the activities listed below, that cooperation
will not, in and of itself, lead to a conclusion that the shareholders are acting in concert:
(a)
entering into discussions with each other about possible matters to be raised with the
company’s board;
(b)
making representations to the company’s board about company policies, practices or
particular actions that the company might consider taking;
(c)
other than in relation to the appointment of board members, exercising shareholders’
statutory rights to:
(i)
add items to the agenda of a general meeting;
(ii)
table draft resolutions for items included or to be included on the agenda of a
general meeting; or
(iii)
(d)
call a general meeting other than the annual general meeting; 7
other than in relation to a resolution for the appointment of board members and
insofar as such a resolution is provided for under national company law, agreeing to
vote the same way on a particular resolution put to a general meeting, in order, for
example:
(A)
7
to approve or reject:
(i)
a proposal relating to directors’ remuneration;
(ii)
an acquisition or disposal of assets;
(iii)
a reduction of capital and/or share buy-back;
Minority shareholders’ rights provided by Article 6 of the Shareholders’ Rights Directive (Directive 2007/36/EC).
5
(iv)
a capital increase;
(v)
a dividend distribution;
(vi)
the appointment, removal or remuneration of auditors;
(vii) the appointment of a special investigator;
(viii) the company’s accounts; or
(ix)
the company’s policy in relation to the environment or any other
matter relating to social responsibility or compliance with recognised
standards or codes of conduct; or
(B)
4.2
to reject a related party transaction.
If shareholders cooperate to engage in an activity which is not included on the White List, that
fact will not, in and of itself, mean that those shareholders will be regarded as persons acting in
concert. Each case will be determined on its own particular facts.
5.
Cooperation in relation to the appointment of members of the board of a
company
5.1
Cooperation by shareholders in relation to the appointment of board members can be
particularly sensitive in the context of the application of the mandatory bid rule. This is
because, if shareholders cooperate in the appointment of board members, they may be in a
position to control the operational management of the company. Different approaches are
adopted in different Member States towards determining whether shareholders who cooperate
in relation to board appointments are persons acting in concert. To some extent these
differences depend on national company law and the prevailing shareholding structures. As a
result of these differences, the White List does not include any activity relating to cooperation
in relation to board appointments.
5.2
However, national competent authorities recognise that shareholders may wish to cooperate in
order to secure the appointment of members to the board of a company in which they have
invested. Such cooperation might take the form of:
(a)
entering into an agreement or arrangement (informal or formal) to exercise their
votes in the same way in order to support the appointment of one or more board
members;
6
(b)
tabling a resolution to remove one or more board members and replace them with
one or more new board members; or
(c)
5.3
tabling a resolution to appoint one or more additional board members.
When considering cases of such cooperation in relation to board appointments, with a view to
determining whether the shareholders are persons acting in concert, national competent
authorities may, in addition to examining facts described in paragraph 3.3 (including the
relationship between the shareholders and their actions), also consider other facts such as:
(a)
the nature of the relationship between the shareholders and the proposed board
member(s);
(b)
the number of proposed board members being voted for pursuant to a shareholders’
voting agreement;
(c)
whether the shareholders have cooperated in relation to the appointment of board
members on more than one occasion;
(d)
whether the shareholders are not simply voting together but are also jointly
proposing a resolution for the appointment of certain board members; and
(e)
whether the appointment of the proposed board member(s) will lead to a shift in the
balance of power on the board.
5.4
Further details about the different national approaches towards determining whether or not
shareholder cooperation in relation to board appointments will lead to the shareholders being
regarded as persons acting in concert or not are provided in Appendix D.
7
APPENDIX A
Contact details for Member States
Whenever there is any uncertainty about proposed shareholder cooperation and, in particular, where
the proposed cooperation relates to voting on a resolution which is not included in the list in
paragraph 4.1(d), parties concerned are encouraged to consult the relevant national competent
authority for guidance as early as possible. Guidance will be provided within the framework of
national laws and regulations. Relevant contact details are provided below.
Queries and information about national legislation or practice
Authority
Section (if such exists)
Website
Email
Austria
Übernahmekommission /
Austrian Takeover
Commission
www.takeover.at
Belgium
Financial Services and
Markets Authority (FSMA)
www.fsma.be
www.fsc.bg
Bulgaria
Комисия за финансов
надзор /
Financial Supervision
Commission
Croatia
Hrvatska agencija za nadzor
financijskih usluga /
Croatian Financial Services
Supervisory Agency
Sektor za tržište kapitala /
Capital Market Division
[email protected]
[email protected]
[email protected]
Telephone
+4315322830613
+3222205408
+35929404858
[email protected]
www.hanfa.hr
[email protected]
Cyprus
Επιτροπή Κεφαλαιαγοράς /
Cyprus Securities and
Exchange Commission
(CySec)
Czech
Republic
Česká národní banka /
Czech National Bank
www.cnb.cz
Denmark
Finanstilsynet /
Danish FSA
www.finanstilsynet.dk
Estonia
Finantsinspektsioon /
Financial Supervision
Authority
www.fi.ee
Finland
Finanssivalvonta /
www.finanssivalvonta.fi
www.cysec.gov.cy
[email protected]
[email protected]
[email protected]
[email protected]
+38516173 245
+35722506600
+420224411111
+4533558282
+3726680500
+358108315585
8
Financial Supervisory
Authority
Autorité des Marchés
Financiers (AMF)
France
Direction des Emetteurs –
Division des Offres
Publiques
Germany
Bundesanstalt für Finanzdienstleistungsaufsicht /
Federal Financial
Supervisory Authority
(BaFin)
Greece
Στοιχεία Επικοινωνίας /
Hellenic Capital Market
Commission
Hungary
The Central Bank of
Hungary
Iceland
Fjármálaeftirlitið/
Financial Supervisory
Authority
Ireland
Irish Takeover Panel
Italy
Commissione Nazionale per
le Società e la Borsa
(CONSOB)
Corporate Governance Unit
– Takeover Bids Office
[email protected]
www.amf-france.org
[email protected]
www.bafin.de
[email protected]
+33(0)143456280
+49(0)228/4108-0
www.hcmc.gr
+302103377246
[email protected]
+302103377235
www.mnb.hu
[email protected]
www.fme.is
[email protected]
www.irishtakeoverpanel.ie
[email protected]
www.consob.it
[email protected]
+36(1)4899653
+3545203700
+35316789020
+390684771
Latvia
Finanšu un kapitāla tirgus
komisija /
Financial and Capital
Market Commission
(FCMC)
Lithuania
Lietuvos bankas /
Bank of Lithuania
www.lb.lt
+370(5)2680538
[email protected]
+370(5)2680532
Luxembourg
Commission de
Surveillance du Secteur
Financier (CSSF)
www.cssf.lu
Malta
Malta Financial Services
Authority (MFSA)
www.mfsa.com.mt
+356 25485112
[email protected]
+356 25485371
www.fktk.lv
[email protected]
[email protected]
+37167774800
+35226251-276
9
Netherlands8
-
Norway
Oslo Børs
Poland
Komisja Nadzoru
Finansowego /
Polish Financial
Supervision Authority
(KNF)
www.oslobors.no
[email protected]
www.knf.gov.pl
[email protected]
+4722341795
+4822262-50-00
Comissão do Mercado de
Valores Mobiliários
(CMVM)
Portugal
Departamento de
Supervisão de Mercados,
Emitentes e Informação /
Markets, Issuers and
Information Supervision
Department
www.cmvm.pt
[email protected]
Romania
Autoritatea de
Supraveghere Financiară /
Financial Supervisory
Authority (ASF)
Slovak
Republic
Národná banka Slovenska /
National Bank of Slovakia
www.nbs.sk
www.a-tvp.si
Slovenia
Agencija za trg vrednostnih
papirjev /
Securities Market Agency
(ATVP)
Spain
Comisión Nacional de
Mercado de Valores
(CNMV)
www.cnmv.es
Sweden
Aktiemarknadsnämnden /
Swedish Securities Council
www.aktiemarknadsnamnden.se
United
Kingdom
The Takeover Panel
www.cnvmr.ro
[email protected]
[email protected]
[email protected]
+351213177000
+40213266875
+421257871111
+38612800400
[email protected]
[email protected]
[email protected]
www.thetakeoverpanel.org.uk
[email protected]
+34915851500
+46(0)850882270
+44(0)2073829026
In the Netherlands, the Enterprise Chamber of the Amsterdam Court of Appeal has competence on matters regarding acting in
concert. Since the Enterprise Chamber is a judiciary authority and as such cannot provide guidance in an ad hoc manner, no
contact information is provided for the Netherlands.
8
10
APPENDIX B
Summary of aspects of national laws/regulations relating to acting in concert and the
mandatory bid rule
1.
National thresholds determining “control”
1.1
In the majority of Member States, the percentage of voting rights that confers control of the
company under Article 5.1 of the Takeover Bids Directive (primary threshold) has been set at
around 30%. Some have set the primary threshold at higher or lower levels than 30% and some
have an alternative primary threshold.
1.2
In some Member States, a shareholder, who, together with persons acting in concert, holds
securities carrying a percentage of the voting rights in a company equal to or exceeding the
primary threshold, may also trigger a mandatory bid to all remaining shareholders if he (or
any person acting in concert with him) acquires further securities carrying a specified
additional percentage of voting rights, in some cases within a specified period (e.g. 2% of
voting rights within a 12 month period) (“creep-in” threshold). The creep-in threshold may be
exceeded in certain Member States if the shareholder (or any person acting in concert with
him) increases his holding of voting rights without making any further acquisition of securities.
1.3
Some Member States have also set a higher percentage of voting rights, in addition to the
primary threshold, that will trigger a mandatory bid (“secondary threshold”).
1.4
It should be noted that even when national thresholds are reached or exceeded, a mandatory
bid may not always be required; this may be because the national definition of control requires
additional conditions to be met or because an exemption may be available.
Details of thresholds are provided below.
Country
Threshold(s)
Primary
threshold
Alternative primary
threshold
Austria
>30%
A company may include
a lower primary
threshold in its articles
of association
Belgium
>30%
Bulgaria
>1/3
Creep-in threshold*
Secondary
threshold
>2% increase between 30%
and 50% within 12 months
na
>3% increase above 1/3 but
>2/3
11
under 2/3 of the voting
rights within 12 months if
holding not resulting from a
previous offer
Croatia
>25%
>10% increase between 25%
and 75% (with no limit in
time)
Cyprus
≥30%
Anything over 30% unless it
is justifiable to apply for an
exception
Czech
Republic
≥30%
Denmark
50%
controlling influence**
na
Estonia
50%+1
controlling influence***
na
Finland
>30%
France****
>30%
Germany
≥30%
Greece
>1/3
Hungary
>33%
Iceland
>30%
Ireland
≥30%
>75%
na
na
>50%
>2% increase between 30%
and 50% within 12 months
na
>3% increase between 33%
and 50% within 6 months
>25% if no other
shareholder holds at
least a 10% interest
na
na
na
>9/10
>0.05% increase between
30% and 50% within 12
months
- >5% increase between
30% and 50% within 12
months
Italy
>30%
Latvia
≥50%
na
Lithuania
>1/3
na
Luxembourg
≥1/3
na
- Reduced to 1% within the
12 months following a
partial bid
12
Malta
50%+1
na
Netherlands
≥30%
na
Norway
>1/3
na
>40%
>50%
Poland
>33%*****
na
>66%
Portugal
>1/3
na
>50%
Romania
>33%
na
Slovak
Republic
≥33%
na
Slovenia
≥1/3
≥10% increase after a
successful offer
≥75%
Only for parties who, on
13/08/07 were holding
30%≤X<50% and either:
Spain
≥30%
Sweden
≥30%
UK
≥30%
Or acquisition of <30%
and appointment of
>50% of the board
within 24 months of the
acquisition
- acquire ≥5% within any 12
month period; or
- through acquisitions reach
≥50%; or
- make any further
acquisitions and appoint
>50% of the board
members within 24
months of the acquisition.
na
Any increase between 30%
and 50%
* Crossing the indicated creep-in thresholds would trigger a mandatory bid.
** Controlling influence: when a shareholder not holding more than 50% of the voting rights in a
company has 1) a right of disposal of more than 50% of the voting rights by virtue of an agreement
with other investors, 2) the authority to manage the financial and operational conditions in a company
pursuant to the articles of association or an agreement, 3) the authority to appoint or dismiss a
majority of the members of the supervisory body, and this body has controlling influence of the
company, or 4) more than one-third of the voting rights in the company and the actual majority of
votes at the general meeting or a similar body, thus having controlling influence over the company.
*** Defined as a shareholder who has the right to appoint or remove a majority of the members of the
management or supervisory board or has a dominant influence or control over the company or the
possibility of exercising it.
**** In France, the thresholds are expressed in terms of holdings of equity securities or voting rights.
Crossing either of these can trigger a mandatory bid.
13
***** In Poland, a shareholder crossing the primary threshold will not be obliged to announce a bid
for all remaining shares but for a number of shares that, combined with his/her existing shares, are
equal to 66% of the votes in the company.
2.
The consequences of shareholders coming together to act in concert
2.1
In some Member States, when shareholders come together to act in concert in relation to a
particular company in circumstances where, independently, they have already acquired
securities in that company which, in total, carry the specified percentage of voting rights that
confers “control” under national takeover rules, they will be required to make a bid to all other
shareholders (a “mandatory bid”). In other words, the mandatory bid obligation will be
triggered even though no further securities have been acquired.
These Member States are Austria, Croatia, the Czech Republic, Finland, France, Germany,
Greece, Lithuania, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia,
Spain and Sweden.
2.2
In other Member States, no mandatory bid obligation will arise initially when the shareholders
come together to act in concert in such circumstances. Such an obligation may, however, be
triggered if any one of the shareholders regarded as persons acting in concert subsequently
acquires further securities carrying voting rights in the company.
This is the situation in Belgium, Cyprus, Denmark, Hungary, Iceland, Ireland, Luxembourg,
Norway and the United Kingdom.
2.3
In Italy a mandatory bid obligation will arise when shareholders acting in concert exceed the
threshold for “control” as a result of acquisitions of securities carrying voting rights made by
any of them. Acquisitions will be considered relevant if they are made at the same time as the
shareholders come together to act in concert, in the twelve months before they come together
to act in concert or at any time after they come together to act in concert.
2.4
In the remaining Member States (Bulgaria, Estonia, Latvia, Malta), owing to a lack of cases
providing experience of shareholders coming together to act in concert in the situation
described in 2.1 above, the consequences for such shareholders have not been settled.
14
APPENDIX C
The definition of acting in concert
1.
Member States have adopted different approaches towards the transposition of the definition
of “persons acting in concert” in national laws and regulations that implement the TBD. Some
have used as the basis of their definition only Article 2.1(d) of the TBD, while others have also
incorporated, in various forms, a concept, broadly, of “the concerted exercise of voting rights
by shareholders” with a view to pursuing a common policy or strategy in relation to the
company or exercising a dominant influence over it. This concept is also found in Article 10 of
the Transparency Directive, which states that:
“The notification requirements defined in paragraphs 1 and 2 of Article 99 shall also apply to
a natural person or legal entity to the extent it is entitled to acquire, to dispose of, or to
exercise voting rights in any of the following cases or a combination of them:
(a)
voting rights held by a third party with whom that person or entity has concluded
an agreement, which obliges them to adopt, by concerted exercise of the voting
rights they hold, a lasting common policy towards the management of the issuer in
question;”.
2.
9
The following table gives an indication of the approach adopted in individual Member States:
TBD definition only
TBD definition plus the
concept of concerted exercise
of voting rights (or similar)
Cyprus
Austria
Denmark
Belgium
Greece
Bulgaria
Hungary
Croatia
Iceland
Czech Republic
Ireland
Estonia
Italy
Finland
Latvia
France
Article 9 TD provides for the notification of the acquisition or disposal of major shareholdings.
15
Luxembourg
Germany
Malta
Lithuania
Netherlands
Norway
Slovak Republic
Poland
Slovenia
Portugal
UK
Romania
Spain
Sweden
16
APPENDIX D
Summary of approaches in the Member States to shareholder cooperation in relation to
board appointments and acting in concert
1.
Different approaches are adopted in different Member States towards determining whether or
not shareholders who cooperate in relation to board appointments are persons acting in
concert. To some extent these differences depend on national company law and the prevailing
shareholding structures. An outline of some of the different approaches is given below.
2.
In some Member States10 cooperation between shareholders to vote together for the
appointment of board members, who, after all the facts have been examined, are considered, in
accordance with national laws, regulations or practice, to be independent from the cooperating
shareholders, will not, in and of itself, lead to a determination that those shareholders are
persons acting in concert. This may be the case even if the proposed board members will form
the majority of the members of the board. However, for some other Member States 11, the
concept of independence of the proposed board members from the cooperating shareholders is
irrelevant for the purposes of determining whether the shareholders are persons acting in
concert.
3.
The number of board members being appointed is a determining factor for some Member
States. In Italy, for example, shareholders vote for lists of candidates and the law provides that
if shareholders have an agreement relating to the submission of such a list, they will not be
acting in concert if the number of candidates on the relevant list comprises less than half the
number of board members to be elected. Some Member States12 consider that shareholders
cooperating to vote for board members who will form the majority of the board are likely to be
acting in concert, while others13 do not, if the cooperation takes place only on one occasion. 14
4.
As a matter of practice, in some Member States 15, when shareholders cooperate by agreeing to
exercise their votes together on one particular occasion to support the appointment or removal
10
Austria, Ireland and the UK.
11
Germany, Italy, Latvia, Romania and Spain.
12
Denmark, France, Germany and Spain.
13
Finland, Norway and Sweden.
In the Czech Republic, shareholders who have an agreement to vote together on the appointment of board members will be
regarded as acting in concert under national rules. However, in practice, in the case of cooperation relating to the appointment
of less than the majority of board members, that cooperation is unlikely, in and of itself, to lead to a mandatory bid obligation.
14
Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Lithuania, Norway, Romania, Slovak Republic,
Spain, Sweden and the UK.
15
17
of one board member only, that cooperation is unlikely, in and of itself, to lead to a
determination that those shareholders are persons acting in concert.
5.
Further information in the form of relevant rules and guidance or decisions published to date
by national competent authorities on the subject of shareholder cooperation in relation to the
appointment of board members can be found through the following links:
Country
Links to national rules, guidance or decisions
Austria
-
Belgium
http://www.fsma.be/fr/Supervision/fm/oa/ooa.aspx
Bulgaria
-
Croatia
-
Cyprus
http://www.cysec.gov.cy/existing_laws_en.aspx
Czech
Republic
-
Denmark
-
Estonia
-
Finland
Selected relevant decisions
http://www.amf-france.org/inetbdif/viewdoc/affiche.aspx?id=9746&txtsch=
http://www.amf-france.org/inetbdif/viewdoc/affiche.aspx?id=10401&txtsch=
http://www.amf-france.org/inetbdif/viewdoc/affiche.aspx?id=33138&txtsch=
France
http://www.amf-france.org/inetbdif/viewdoc/affiche.aspx?id=13856&txtsch=
http://www.amf-france.org/inetbdif/viewdoc/affiche.aspx?id=15014&txtsch=
http://www.amf-france.org/inetbdif/viewdoc/affiche.aspx?id=61413&txtsch=
http://www.amf-france.org/inetbdif/viewdoc/affiche.aspx?id=41689&txtsch=
http://www.amf-france.org/inetbdif/viewdoc/affiche.aspx?id=27811&txtsch=
Germany
Report "Acting in concert in the version of the Risk Reduction Act" on page 9 to 11 in
the journal BaFinQuarterly Q2/10 of 15 July 2010:
http://www.bafin.de/SharedDocs/Downloads/EN/Mitteilungsblatt/Quarterly/bq10
02.html
18
Section 30 Paragraph 2 of the German Securities Acquisition and Takeover Act:
http://www.bafin.de/SharedDocs/Aufsichtsrecht/EN/Gesetz/wpueg_en.html?nn=2
821360#doc2684280bodyText35
Greece
-
Hungary
-
Iceland
-
Ireland
Consolidated Law on Finance (Legislative Decree n. 58 of 24 February 1998 –
“Consolidated Law“) – Article 101-bis, par.4 , par. 4-bis.
Italy
Regulation implementing Consolidated Law (Regulation n. 11971 /99 as integrated
and amended) – Article 44-quater
http://www.consob.it/mainen/legal_framework/index.html
Latvia
-
Lithuania
-
Luxembourg
-
Malta
-
Netherlands
-
Norway
-
Poland
-
Portugal
-
Romania
-
Slovak
Republic
-
Slovenia
-
Spain
-
Sweden
The Takeover Code: Rule 9.1 (mandatory bid rule) and Notes 1 and 2 on Rule 9.1:
UK
http://www.thetakeoverpanel.org.uk/wp-content/uploads/2008/11/code.pdf
Practice Statement No 26: Shareholder activism:
http://www.thetakeoverpanel.org.uk/wp-content/uploads/2008/11/ps26.pdf
19